Commercial Radio Australia Ltd v Phonographic Performance Company of Australia

Commercial Radio Australia Ltd (CRA) and Phonographic Performance Company of Australia (PPCA) were the parties in this dispute before the High Court of Australia. The central issue concerned the interpretation of section 109 of the *Broadcasting Services Act 1992* (Cth) and its interaction with the *Copyright Act 1968* (Cth), specifically in relation to the performance of sound recordings by commercial radio broadcasters. CRA, representing commercial radio broadcasters, sought a declaration that their playing of sound recordings did not infringe copyright, while PPCA, which licenses and collects royalties for the public performance of sound recordings, contended otherwise.

The High Court was required to determine whether the statutory licence granted to broadcasters under section 109 of the *Broadcasting Services Act* extended to authorising the performance of sound recordings in a manner that would otherwise constitute copyright infringement under the *Copyright Act*. This involved considering the scope of the statutory licence and whether it provided a defence to claims of copyright infringement for the playing of sound recordings. The court also had to assess the relationship between the specific provisions of the *Broadcasting Services Act* and the general provisions of the *Copyright Act* concerning the rights of copyright owners in sound recordings.

In its reasoning, the High Court held that section 109 of the *Broadcasting Services Act* did not operate to authorise the performance of sound recordings in a way that would otherwise infringe copyright. The court emphasised that the statutory licence under section 109 was limited to the transmission of broadcasts and did not extend to the underlying copyright in the sound recordings themselves. Therefore, the playing of sound recordings by commercial radio broadcasters constituted a public performance of those recordings, and without a licence from the copyright owner or their representative, such performances were infringing. The court applied the principle that statutory provisions must be interpreted to give effect to their plain meaning, and that a specific statutory licence does not override general copyright protections unless expressly stated.

The High Court dismissed the appeal by Commercial Radio Australia Ltd, upholding the decision of the Full Federal Court. This meant that commercial radio broadcasters were not exempt from their obligation to obtain licences from Phonographic Performance Company of Australia for the public performance of sound recordings.